2021 PLP 1763 (MLD)

ABDUL HAMEED BALOCH, J.

Through this judgment we intend to dispose of Criminal Appeal No.194 of 2019, Criminal Revision Petition No. 18 of and Criminal Acquittal Appeal No. 210 of 2019, as the same are outcome of one and same incident and same have been directed against the judgment dated 21st May, 2019 (impugned judgment) passed by learned Sessions Judge/Model Criminal Trial Court, Kharan (trial court).

2. The brief facts of the case are that on 5th February, 2018 the complainant Abdul Wajid lodged an FIR No. 10/2018, with Police Station Kharan, alleging therein that on the fateful day his brother Hafiz Abdul Bari left from home by motorcycle and was going to Madrasa Anwal-ul-Ulum of Moulvi Muhammad Hayat Kalangi, situated at Northern City, then he reached in front of shop of Saeed Ahmed where the accused Saddam Ahmed was already present and seated in his X-Corolla vehicle and as soon his brother reached near him, he opened fire at him. Meanwhile Manzoor Ahmed who heard the firing came out from his shop and saw the accused Saddam during course of firing. Complainant further alleged that the said Mazoor Ahmed called him through phone and informed him about the incident, whereupon he reached at hospital where his brother succumbed to his injuries; that one day prior to the incident the accused person Abdullah, Abdul Rauf had come to the Madrasa Anwar-ul-Ulum to kill his brother but his brother was not present there. The abovementioned accused persons are the Facilitators of principal accused Saddam Hussain.

3. After registration of FIR, the investigation of the case was conducted, whereafter, challan of the case to the extent of accused Abdullah was submitted before the trial court. Thereafter charge was framed and read over to the accused Abdullah, to which he did not plead guilty and claimed trial. During the trial, the prosecution produced as many as seven witnesses. Meanwhile on 2nd March 2019 the accused Saddam Hussain was arrested, whereafter charge was framed, to which he did not plead guilty, thereafter the prosecution produced as many as eleven witnesses. After close of prosecution side, the accused were examined under section 342, Cr.P.C, to which they once again denied the allegation and claimed to be innocent. The accused persons did not opt to record their statements on oath as envisaged under Section 340(2) Cr.P.C nor produced any witness in their defence.

4. After completion of trial the learned trial court heard arguments and thereafter, vide impugned judgment, acquitted accused Abdullah son of Muhammad Azeem of the charge, whereas accused Saddam Hussain alias Kobra was convicted under section 302(b), P.P.C. and sentenced to suffer RI for life imprisonment and to pay compensation amounting to Rs.500,000/- (five lac) to the legal heirs of deceased as per provisions contained under Section 544-A, Cr.P.C, or in default whereof to further undergo S.I for six (06) months. The benefit of Section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in his favour. Hence the accused Saddam Hussain alias Kobra filed criminal appeal against his conviction while the complainant filed criminal revision petition for enhancement of the sentence and Criminal Acquittal Appeal against acquittal of accused Abdullah.

5. Learned counsel for the appellant convict contended that the impugned judgment is result of misreading and non-reading of evidence; that the ocular witnesses are closely related to the deceased; that despite availability of independent witnesses the prosecution failed to produce them, therefore false implication of the appellant/convict toward the commission of offence cannot be ruled out; that the medical evidence is conflicted with the ocular account; that the circumstantial evidence and the ocular account are not corroborated to each other; that the disclosure before the police is not admissible in evidence; that the prosecution witnesses are contradictory to each other; that the conviction cannot be based on the basis of such a shaky evidence; that there exist sufficient doubt in the case of prosecution but the benefit of doubt has not been extended in favour of the appellant by the trial court; that mere absconsion of the appellant cannot be made bases for his conviction. Leaned counsel for the appellant placed reliance on the following cases: 2014 PCr.LJ 206, 2018 SCMR 2092, 2010 PCr.LJ 211, 2016 PCr.LJ 1378 and 2018 SCMR 772.

6. Conversely, learned DPG supported the impugned judgment and stated that the prosecution has succeeded in proving the guilt of the appellant. He further added that the fact and circumstances of the case established that the charge has successfully been proved by the prosecution beyond any shadow of doubt; that the conviction of appellant is based on proper appreciation of evidence by the trial court.

7. Learned counsel for the complainant, petitioner in Criminal Revision Petition No.18/2019 and for the appellant in Criminal Acquittal Appeal No. 210 of 2019 stated that the complainant has proved his case through cogent and confidence inspiring evidence but the trial court without any justification has awarded lesser punishment; that the murder was committed with preplanned and prearranged: that the trial court has wrongly come to the conclusion that the prosecution has failed to prove guilt of the acquitted accused.

8. Heard the learned counsel for the parties as well as learned DPG. carefully examined the contention as mentioned hereinabove in the light of record of the case with the eminent assistance of the learned counsel. The prosecution in order to substantiate its case produced eleven witnesses. It is not out of place to mention here that after registration of FIR Ex-P/7-A by the complainant, the acquitted accused was arrested, whereas the appellant was declared absconder by the trial court. When the prosecution examined seven witnesses against the acquitted accused, meanwhile the appellant was arrested on 2nd March, 2019 from Quetta and the prosecution also submitted challan to the extent of the appellant, thereafter the trial court recorded the statement of eleven witnesses. The prosecution case rests on ocular account, medical evidence, positive report of blood-stained garment of deceased, blood stained earth. It is an admitted fact that the PW-1 (complainant) is not an eyewitness of the occurrence rather he was informed by PW-5 Manzoor. It is the case of prosecution that the appellant had made firing upon deceased near the shops of PW-5 namely Manzoor Ahmed and PW-7 Saeed Ahmed. The defence has not disputed the shop of both the ocular witnesses near the place of occurrence, meaning thereby the presence of above referred witnesses is natural. Even otherwise the defence has admitted the presence of ocular witnesses at the place of occurrence. PW-10 (investigating officer) during cross-examination states as under:

9. The FIR was lodged by the complainant (PW-1) on the basis of information conveyed by the PW-3, however the same was lodged with promptitude without any fabrication. The ocular account is consistent in their statements and despite lengthy cross-examination they remained unshaken.

10. The learned counsel for the appellant contended that the ocular witnesses are inter se related to deceased and complainant has failed to produce any independent witness, has no force. Mere relation of the PWs with the deceased or complainant per se is no ground to discard and discredit their testimonies, because such witnesses are necessarily not interested witnesses in the true sense of the term. It is settled proposition of law that the interested witness is the one who has animosity to falsely involve the accused in a heinous offence like murder. The apex Court has held that statement of witnesses cannot be disbelieved on the basis that he is related to the deceased. An interested witness is a person who has motive to falsely implicate an innocent person. We do not find the testimonies of ocular witnesses as tainted or they had motive to falsely implicate the appellant. The defence has failed to brought on record to show that the ocular witnesses were inimical to the appellant. In this regard reliance is placed on the case of Khadim Hussain v. State PLD 2010 SC 669 whereby the Hon'ble Supreme Court held as under:

7. It is an admitted feature of the case that eye-witnesses were related to deceased but on this score their statements could not have been discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses who stood firm to the test of cross-examination cannot be discarded especially when sufficient corroboratory material is available. It is to be noted that only for the safe dispensation of justice corroboration is necessary in certain given circumstances but the scope of this principle cannot be extended to the case of ancillary facts testified by the witness. (Riaz Hussain v. The State 2001 SCMR 177). It is the intrinsic value of the statements of prosecution witnesses which is to be examined and not the relationship. There is no cavil to the proposition that "in such like cases the Court is required to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration". In this regard reference can be made of case titled Riaz Hussain v. The State 2001 SCMR 177, Devi Prasad v. State AIR 1967 ALL 64, Niaz v. State PLD 1960 SC (Pak) 387, Nazir v. The State PLD 1962 SC

269. As mentioned hereinabove "friendship or relationship of a witness with the deceased is not sufficient to discredit him particularly when he has no motive to falsely involve the accused in a heinous offence like murder." In this regard reference can be made to cases titled Manawar Ali v. State 2001 SCMR 614, Muhammad Amin v. The State 2000 SCMR 1784, Iqbal alias Bhola v. State 1994 SCMR 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad v. The State 1976 SCMR 161, Allah Ditta v. The State 1970 SCMR 734, Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274.

11. Certainly, no plausible reason has been established by the defence to indicate why the eye-witnesses and complainant would substitute the appellant by leaving the real culprit. The occurrence has been taken place in broad day light. The appellant was nominated in promptly lodged FIR. His role was also described with description of weapon used by him. The testimonies of eyewitnesses are natural and convincing one and their statements found corroborated with other evidence. We have examined the defence version which is based on simple denial and no evidence was produced to show the nature of enmity. In our view the trial court rightly believed the statements of eyewitnesses.

12. The perusal of record further manifests that the occurrence has taken place on 05.02.2018 while the appellant was arrested on 2nd March, 2019. The willful absconsion is to be considered as corroborative piece of evidence as the appellant has failed to produce any cogent evidence to show that the same was not willful or deliberately. The testimony of ocular witnesses being not suffering from any disability which was duly supported by medical evidence. There is harmony between medical and ocular account. Mere assertion that medical evidence is conflicted with oral evidence is not enough rather it is bounden duty of defence counsel to explain as to how and on what ground the medical evidence conflict with total evidence. Beside that the unnatural death of the deceased was not disputed by the defence. In this regard reliance is placed on the case of Khan and another v. State PLD 2004 SC 330 whereby it has been held that: "It is not enough to argue that medical evidence is in conflict with oral evidence but it is mandatory duty of the learned counsel to give solid reasoning and explain that how and on what ground the medical evidence was in conflict with oral evidence. As mentioned hereinabove nothing can be pointed out in this regard except that the conflict between the medical evidence and oral evidence was apparent, which is not sufficient to consider the said contention until and unless it is explained with reasoning qua the conflict between medical evidence and oral evidence. Besides that the factum of absconsion has rightly been considered as corroboratory piece of evidence. There is no cavil with the proposition that factum of absconsion cannot altogether be ignored and corroborative value of the abscondence carries substantial weight. In this regard following authorities can be referred:- PLD 1971 Pesh. 32: Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v. State PLD 1965 Lah. 656; Permeshwar Din v. E.AIR 1941 Outh 517; Crown v. Fateh Muhammad 35 PLR 740; Chandika Prashad v. E 126 IC 684; AIR 1930 Oudh 324; 31 Cr.LJ 1081; Gangaram Hari Parit v. E. 62 IC 545; 22 Cr.LJ 529; Q.E. v. Sami and others 13 Mad. 426; Q.E. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2: CCM 81; Mahla Singh's case 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522: Q. v. Sorab Roy 5 WR Cr.28; Khan v. State AIR 1955 Cal. 146; PLD 1978 SC 103; Riaz Hussain v. The State 2001 SCMR 177."

13. Having examined the evidence, we find that the prosecution produced ocular account, medical evidence, blood stained earth, blood stained cloth. Both the eyewitnesses i.e. PW-5 and PW-7 have proved that the appellant assaulted upon the deceased by means of firing due to which he succumbed to injuries. The witnesses have undergone with test of lengthy cross-examination but their presence at the spot could not be shattered. The eyewitnesses were natural witnesses of the occurrence arc as good as evidence of other independent witness. There is no reason to discard the straight forward confidence inspiring evidence. Although some minor discrepancies and contradiction in the statement of eyewitnesses during cross-examination were found but those contradiction do not cause any damage To Whom It May Concern: the prosecution case. The Hon'ble apex Court held that minor contradiction which do creep in with the passage of time, can be ignored safely. The ocular witnesses have made consistent statements regarding commission of offence by the appellant with specific role. The law does not permit to choose few sentence from the evidence and based decision in favour of the defence while reading those sentences in isolation to the remaining evidence available on the record. In this regard reliance can be placed on the case of Zakaullah v. State 2015 YLR 1977.

14. Now coming to the quantum of sentence of the appellant, the record transpires that the alleged crime weapon i.e. Kalashnikov was not recovered. The prosecution did not examine the minor witness. The PW-7 (Saeed Ahmed) in his testimony mentioned that the Child was accompanying with the deceased at the time of the incident and whereabout of the child was missing. As per the statement of ocular witnesses and medical evidence, the appellant caused one injury in the non-vital part of body of deceased, meaning thereby the appellant was not intended to commit Qatl-e-Amd under Section 302(a), P.P.C. The trial court has rightly convicted the appellant under Section 302(b), P.P.C.

15. The prosecution has failed to prove the case against the acquitted accused Abdullah. Admittedly he was not present at the spot nor any incriminating evidence is available on record to connect the acquitted accused with the commission of crime. It is settled principle of law that the acquittal of accused carried double presumption of innocence of accused. In this regard the Hon'ble Supreme Court of Pakistan on the case of Muhammad Shafi alias Kuddo v. State 2019 SCMR 1045 held that "It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view".

16. The analysis of prosecution evidence show that the prosecution has proved the charge against the appellant/convict beyond reasonable doubt. The impugned judgment regarding guilt of the appellant/convict being based on evidence of natural witnesses would not call for interference by this court, as such the impugned judgment, passed by the trial court is hereby upheld. Consequent to the above, the Criminal Appeal No.194 of 2019, Criminal Revision Petition No.18 of 2019 and Criminal Acquittal Appeal No.210 of 2019 are dismissed. JK/76/Bal. Appeals dismissed.